Hart and the realists Notes for February 11–13

Main points

Hart favors the separation of law and morals, meaning that he thinks both that it is possible for there to be immoral laws and that he thinks we are better off for thinking that ‘law as it is’ is different from ‘law as it ought to be’.

That much was clear. Where we had a lot of trouble was in figuring out how Hart’s position was related to legal realism.

On the one hand, Hart seems to have a lot in common with the two realists that we read, Holmes and Frank.

On the other hand, there is clearly some disagreement. Hart is concerned to rebut the charge that Legal Positivism is a version of “formalism”, that is, that it does not portray the role of judges as simply applying law to cases. In addition, he accused the Realists of exaggerating the extent of penumbral cases. Finally, that last point seemed to have something to do with an argument for a necessary connection between the way the law is and the way it ought to be.

I’m pretty sure that we ironed this problem out on Wednesday. But it took a while.

Adjudication vs. decision

For me, the key lay in distinguishing between two ways that judges can settle cases.

They can adjudicate the contending claims about the law. That is, they can take what each side says about the law and decide which one, if any, is correct. Adjudication is about what the law is.

They can decide in favor of one or the other. Deciding involves procedures other than figuring out what the law is. Flipping a coin is a crude way of deciding. So is picking the outcome that would produce the best social advantage. Neither way of settling a case involves saying what the law is, well, was, prior to the decision.

The big knock against positivism is that it lacks a theory of adjudication. What that means is that the theory gives judges no guidance in settling the penumbral cases.

The theory says that there is a settled core to the law and that penumbral cases fall outside this core. So how is a judge supposed to settle those cases? We think of judges as settling cases through adjudication, that is, giving their opinion of what the law really is. But, according to Hart, that’s an inappropriate description of the penumbral cases.

Something similar could be say of legal realism too, or, at least, of the legal realists that we read. They say that there is no law before the judge makes a decision. Needless to say, that theory doesn’t help a judge who wants to know “what is the law here?” In fact, it’s worse for the realists than it is for the positivists. At least the positivists have the core of cases that can be settled by asking what the law is. According to the realists, everything depends on what judges say.

This is the motivation for what I artlessly called “Class 3”. If you think that a philosophy of law should provide a theory of adjudication, you might find one in the end of Holmes’s article. Holmes says that judges should make decisions based on the social advantage. “Aha,” you might say, “if we combine the assertion that law is what judges say it is with the unremarkable assertion that the most sensible way to make a law is to make it as it ought to be, you get the conclusion that the way the law is is identical with the way that it ought to be.”

We didn’t catch anyone who said that in so many words. But Hart was concerned to argue against that kind of extension of what Holmes wrote.

Hart also wanted to defend what he took to be Holmes’s characterization of what judges do in penumbral cases: they make law, or legislate, rather than adjudicate.